2 P.2d 835 | Cal. Ct. App. | 1931
Plaintiff sued for damages for the death of her minor son who was employed in the playfield of the Golden Gate Park operated by the city and county of San Francisco. The defendants are the park commissioners, the park superintendent, the superintendent of playgrounds and the manager of the "Fleishhacker Playfield". The cause was tried with a jury. At the close of plaintiff's case the trial judge granted defendants' motion for a nonsuit. The appeal is presented on typewritten transcripts.
The deceased was a boy of fifteen years, who was employed on Saturdays and holidays in and about the "Fleishhacker Playfield". On May 19, 1929, he was assigned to take tickets at the "Ferris Wheel" operated in said playfield and to start and stop the machine and to open and close the gates to permit the children to enter and leave the cars or carriages on the wheel. The machine was started and stopped by a lever located at the entrance gate where deceased was stationed. The operating machinery was inclosed in a shed on the opposite side of the wheel from the entrance gate and this shed, as well as the wheel, was surrounded by a high wire fence. A man by the name of Hancock had direct charge of the operation of the machine with the special duty of oiling and greasing its parts and of performing such mechanical work as became necessary. The deceased was frequently instructed not to enter the inclosure where the machinery was housed and not to attempt to oil, grease or repair any of its parts. On the day of his death he asked defendant Brandon for a rag, saying he wanted to tighten a grease cup. He was told to leave the grease cup alone and to report to Hancock. He asked Hancock for a rag and Hancock told him to leave the grease cup alone and that he (Hancock) would attend to it. Shannon disregarded these instructions, entered the fenced inclosure, and climbed around behind the wheel while it was in motion. He was struck on the back of the head by some portion of the wheel and died soon after. *261
In the final analysis appellant bases her cause of action upon the theory that all the defendants were guilty of negligence perse because the deceased minor was employed in violation of the Child Labor Law and the Compulsory School Attendance Law. The appeal is argued on the theory that if a violation of either of these statutes is shown a case of negligence per se is made which should have gone to the jury. However, we are not satisfied that the decision should rest upon this ground. By the act of June 13, 1923 (Stats. 1923, p. 675; Deering's Gen. Laws, 1923, Act No. 5619), the legislature changed the entire policy of the state in regard to actions for injuries sustained upon public property. This act made counties, municipalities and school districts liable for the negligence of their officers in certain instances and prescribed the method for enforcing such liability. Prior to this act no action would lie against a municipality for injuries suffered in connection with the operation of a municipal playground. (Kellar v. City of Los Angeles,
[1] Having elected to sue the officers rather than the municipal corporation it was incumbent upon appellant to bring her complaint within the terms of the statute which imposed a liability upon those officers. Three acts of negligence were specified in her complaint — the violation of the *262
two employment statutes and negligence in the maintenance of the grounds which was stated in the following language: That the respondents "negligently maintained said ferris wheel and carelessly and negligently permitted said ferris wheel to be operated, due to the fact that said ferris wheel was not equipped with, at the time of its installation or afterwards or at all, a guard to protect persons from coming in contact with the revolving lower part of said ferris wheel". Two essential elements of the statute are lacking: respondents' knowledge of the alleged defective condition of the property, and the exercise of due care on the part of deceased. In the recent case ofGorman v. County of Sacramento,
The "Pridham Act" (Stats. 1911, p. 1115) contained the same language and was given the same interpretation in Ham v.County of Los Angeles,
In the three cases cited — the Ham case, the Burton case and the Gorman case — petitions for hearing were denied by the Supreme Court, and, finding no authority to the contrary, we may take them as stating the controlling rule of law in proceedings of this character. As the statute expressly declares that it is not to be construed as enlarging the duty or liability of any public officer, we must construe it as a limitation upon liability of such officers for injuries incurred under the circumstances therein enumerated. And this construction becomes the more sound since the enactment of Act No. 5619 in 1923 which for the first time imposed a liability upon the public corporation for such injuries and which so closely follows the 1919 act in its language as to indicate that the legislature had that act before it when the later one was enacted. These two acts should, therefore, be read together as stating the statutory rule of procedure for the enforcement of liability for injuries incurred under the circumstances therein mentioned, so that, if the injured party seeks recovery against the public corporation, he must proceed under the 1923 act, and, if he seeks to hold the public officers to their personal liability, he must proceed under the 1919 act (except in the limited cases mentioned in section one of the Act of 1923). The appellant having failed to plead or prove that the deceased was using the "property" with due care she has utterly failed to make a case to go to the jury.
[2] The only answer suggested to the foregoing is that, under the rule of Smellie v. Southern Pac. Co.,
There is a justifiable reason for this distinction. Public property is open to the use of the public generally; and the general use of such property is a constant source of danger to the public. To encourage the exercise of due care in the use of public property, the legislature might well limit the public liability to those who exercise such care. And, as the state and its political subdivisions and officials may not be sued for damages in such cases without the consent of the state, the legislature may properly impose such reasonable restrictions upon actions of this character.
[3] There is another point of difficulty which, like the foregoing, has not been discussed in the briefs, but which effectively stops the case in so far as the respondents, the park commissioners, are concerned. The park commissioners were all officers and agents of the city and county of San Francisco, a public corporation. The park superintendent, his assistant, and the manager of the playfield were all subagents employed in the service of the common principal. As original agents the park commissioners are not liable to a third person for the negligence of their subagents, or coservants. Section
[4] In so far as the respondents the park superintendent and the superintendent of playgrounds are concerned, there is neither pleading nor proof that they had any power or duty to appoint the manager of the playfield, or to employ the deceased, or that they had any knowledge of his employment, or of the alleged defective condition of the ferris wheel. The allegation is that the deceased was employed by Brandon as manager of the playfield. But Brandon was also an employee, or agent, of the public corporation, and, as such, a coservant of these other respondents. Though he may not have been a "sub-agent" of the park superintendent or of his assistant within the terms of section
In the instant case the failure to plead the exercise of due care might have been excused if the appellant had made proof of that fact; but her proof is all one way — that the machinery was properly safeguarded and that the injury was caused solely by the disobedience by the deceased of the direct orders of his superiors. In this respect the case is analogous to Scott v.City of Long Beach,
For the reasons given the appellant wholly failed to make a case against any of the respondents, other than Brandon, as public officials or in their private capacities and, as to all those respondents, the nonsuit was properly granted.
As to the respondent Brandon the allegation of the complaint being that he employed deceased in violation of the Child Labor Law and the Compulsory Education Law a consideration of those acts becomes necessary. [5] The provisions of the Child Labor Law (Deering's Gen. Laws, 1923, Act No. 3625; Stats. 1919, p. 415) upon which reliance is placed prohibit the employment of any minor under the age of sixteen years "in or in connection with any . . . place of amusement . . ." (section 1) except as may be provided by the provisions of "the compulsory school attendance law". Section 4 of the act provides that "No minor under the age of sixteen years shall be employed, permitted or suffered to work . . . oiling, wiping or cleaning machinery . . . or in proximity to any hazardous or unguarded belts, machinery or gearing, . . . or in any other occupation dangerous to the life or limb, or injurious to the health or morals of such child." This section lists twenty-four different kinds of machines and nineteen separate places of employment where such minors may not be employed and authorizes the bureau of labor statistics to list other places of employment which should be prohibited. Neither the machine nor the place of employment where the deceased met his death is banned by any of these specific regulations. *267 All the evidence, without any shade of conflict, is that the deceased was engaged to perform a safe and nonhazardous duty in connection with a machine that was protected by every known safeguard. He was not employed to oil or clean any machinery and was not employed in proximity to any unguarded machinery or in any occupation dangerous to life, limb, health or morals. Thus it is apparent that appellant was not employed in violation of this statute in so far as the machine he was hired to operate is concerned, first because the ferris wheel is not a machine listed in any of the regulations and second because this machine was not "unguarded machinery", which is the only general regulation found in the act. All the evidence demonstrates that the wheel was guarded by every known safeguard and that the minor was explicitly directed not to go behind those guards. The exhibits which have been brought up with the transcript plainly show that if deceased had followed these instructions and had remained where he was employed to remain there could have been no possible chance for an injury. Negligence cannot therefore be predicated upon the mere employment of the minor to work the harmless lever of the machine and to take the tickets from the customers. As this was all he was employed to do the fact that he disobeyed instructions and went over the guard to a place of danger has no relation to any liability of the respondents under the labor statute. To hold that a minor may not be employed in a place of safety because perchance he might disobey orders and wander into a place of danger would make the labor law ridiculous.
In so far as the statute relates to the place of employment, it is true that such minors may not be employed in any "place of amusement" without a permit from the school authorities as required by the Compulsory School Attendance Law. If it is negligence per se to employ a minor in such a place of employment without a working permit then appellant has a case. Otherwise not.
[6] This brings us to a discussion of the second point — the effect of the failure of the deceased to present a certificate to work from the school authorities. The Compulsory Education Law upon which appellant relies is the act of March 24, 1903 (Stats. 1903, p. 388; Deering's Gen. Laws, 1923, Act No. 7487). Though this act was repealed by the *268 School Code adopted in 1929 (p. 303) and its main provisions were incorporated in that code, the repealing act did not become effective until after this cause of action arose. The pertinent provisions of this act required a minor under the age of sixteen years to procure a permit from the proper school authorities permitting him to work and required the employer to ask for and retain the permits so issued to such minors in his employ. It provided that no one should "suffer or permit" a minor to be employed in violation of the terms of the act, and it would thus seem to apply to an agent of the employer such as the respondent Brandon. The act prescribed certain regulations to be followed in the issuing of such permits within the discretion of the school authorities and these were followed with specifications for the issuance of "vacation permits" which also authorized the minor to work on the regular weekly school holiday. The issuance of such "vacation permits" appears to be mandatory.
Here it is conceded that the deceased minor did not deliver to the respondents a permit to work. For this reason the appellant insists that she has a case of negligence per se. The respondents argue that there is no causal connection between the fact of the absence of the permit and the injuries sustained by the minor. This should also be conceded because it is self-evident. The rule of law applicable is succinctly stated inArrelano v. Jorgensen,
Similar holdings have been made in reference to violations of the California Vehicle Act — that they must have proximately contributed to the injury complained of to be actionable. (Ormston v. Lane,
We have purposely confined the foregoing discussion to the two theories upon which appellant sought to recover — the alleged violation of the Child Labor Law, and the alleged violation of the Compulsory Education Law. We have shown that she failed to prove a violation of the Labor Law and that she failed to prove that the admitted violation of the Compulsory Education Law was a contributing cause of the injuries. We have not overlooked any of the many assignments of error on the exclusion of evidence. [7] There was no controversy but that the ferris wheel as a whole was a dangerous piece of machinery within the meaning of the Child Labor Law, but all the evidence educed by the appellant demonstrated that the place where the deceased was employed was free from danger and that the injury arose solely from his disobedience of orders in going into a place where he was not employed. Hence, the appellant was not prejudiced by the exclusion of additional evidence offered to show the dangerous character of this machinery. Having failed to show a causal connection between the absence of a working certificate and the injuries *270 complained of she was not injured by the exclusion of the proffered evidence tending to show that other minors had been employed in the park system and that some of the respondents had knowledge of that fact. [8] The criticism of the trial judge in refusing to dismiss the jury while the motion for nonsuit was argued falls with the granting of that motion. The same may be said of the complaint that appellant was not permitted to argue that motion fully. She has had full opportunity to argue it here, and if we are correct in our conclusions, further argument in the trial court could not have availed appellant.
Judgment affirmed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on September 23, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 23, 1931, and the following opinion then rendered thereon:
THE COURT.
In denying a hearing in this case, we withhold our approval of that part of the opinion which deals with the meaning and effect of the Child Labor Law (Deering's General Laws, 1923, Act 3625) and of the Compulsory Education Law (Deering's General Laws, 1923, Act 7487).